Mimesis Law
16 February 2019

Cross: Mark Bennett, Senior United States District Judge (N.D. Iowa)

May 25, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses prolific scholar and writer, Mark W. Bennett, Senior United States District Judge of the Northern District of Iowa.

Q. Unlike the typical Supreme Court justice, you received your bachelor’s from Gustavus Adolphus College and your J.D. from Drake University Law School. What were your plans? Was it always your intention to become a lawyer? Was there a goal in mind, to save the world, perhaps, or did law seem like a good thing to do? Did you plan to spend your career in Iowa or did you see national prominence in your future?

A. I am still laughing that you would compare the educational background of a small town country lawyer like me to a “typical Supreme Court justice.” Actually, I was on the steps of Langdell Hall on my spring break during my first year of law school, after hitchhiking out East. While striding up the stairway to see the inside of the building (of a law school that had rejected my application) the first student I saw was carrying the same casebook and Gilbert Law Summaries on Contracts that I had used. Just a few years ago, I was there, again, speaking about my work on implicit bias in the judicial system. I often get a good chuckle out of the fact that I have either been a visiting jurist in residence or a guest lecturer at the law schools that rejected my application.

My plan from age 8 or so was to become a civil liberties and civil rights lawyer. My mother died when I was young, and I was raised by an African American nanny, Tessie, who I was very close to. I was deeply moved by the discrimination she and her family encountered in Minnesota in the 1950s.  It left an indelible impression. Tessie was never bitter in our talks, but never hid the truth from me either. In high school, I volunteered at the Minnesota Civil Liberties Union.  When it was time to go to law school, I chose Drake because, at that time, there was no staff counsel for the ICLU in Des Moines.

Four years later, in addition to having started my own firm upon graduation, specializing in civil rights, civil liberties, and constitutional litigation, I became assistant general counsel to the ICLU.  One of my partners was GC. We built a terrific, small firm, based in part on our early decision to go into major debt to buy desktop computers in 1977, off an IBM promo tape. We were the first law firm in Iowa to do so. We attracted wonderful clients and cases that allowed me to practice in many federal courts.

I always thought of myself as a super, hard-working, civil rights lawyer dedicated to the lifelong mission of striving to be the best I was capable of and giving voice to those in need.  I experienced many talented trial lawyers on the other side of my cases.  They often became my mentors. I never, once, had another professional ambition or goal.  I never thought about being a judge.

 

Q. You started out practicing employment law, though you’ve written that you were a “proud member of the CJA panel from the week after passing the bar exam.” Did you find a connection between employment and criminal defense? Why did you join the panel? If you had a desire to defend the accused, why not specialize in criminal defense?

A. The connection, to me, was being an advocate for an underdog who needed a strong, creative, passionate, and doggedly determined voice to help. Practicing in both areas helped develop complementary skills, like learning how to effectively cross-examine a witness in a criminal case without the luxury of depositions, interrogatories, and often no witness statements. Besides, there were a number of terrific criminal defense lawyers in Des Moines and a much larger void of civil rights lawyers.

Today, the most highly skilled lawyers I see in the courtroom are lawyers in the criminal arena or civil lawyers who were former AUSA’s or public defenders. I also joined the panel because $10 an hour for out of court time and $15 an hour for in court time was more productive than playing miniature golf with my partners as we were building the firm and had time on our hands early on.

I was very proud to be on the CJA panel and, even after our firm lured away a terrifically talented AUSA to join us and I gave him all of my retained criminal work, I remained on the panel until the day before I was sworn in as a S. Magistrate Judge. I felt I had a professional obligation to do CJA work. It helped hone my skills, especially in investigating the facts without formal discovery. It taught me how to manage civil cases without the necessity of engaging in tons of discovery and the inevitable abuse and time consuming nonsense that comes with it.

Q. At the ripe old age of 29, you argued, and won, your first case before the Supreme Court of the United States, an age discrimination case, Oscar Meyer v. Evans. Most lawyers never get to appear before the Supreme Court, and yet you were there three times before you were 32. What was it like to shoulder such responsibility so early in your career? Did you think about the fact that an errant response could sink an area of law for a nation? Were you lucky, or that good? Did you take it as normal to be arguing before SCOTUS?

A. Being in my twenties and naive actually had some beautiful advantages. I didn’t find the responsibility of representing clients in the U.S. Supreme Court any more or less daunting than representing any other client. Three days after passing the bar, I was appointed to represent my first client, M.S. Spurling, a woman in her 40s. The state was trying to civilly commit her because she politely, but firmly, tried to deposit a bottle of cheap wine and a loaf of bread in her checking account at the old Iowa Des Moines National Bank. I learned from an experienced lawyer, who had done several civil commitment hearings, that the “referee” did not have the proceedings transcribed, use a burden of proof, or many other safeguards that I believed were constitutionally required.

I brought my own tape recorder to the hearing to make a record, raised something like two dozen constitutional objections to the proceeding, and summarily lost. Ms. Spurling was scheduled to be moved many hundreds of miles away the next day to a state hospital. I immediately went back to my office and typed a Great Writ, a habeas corpus petition, with my two-finger, hunt and peck technique. We hadn’t, yet, been able to afford a legal secretary. I knew I would not finish before the courthouse closed. When I finally finished, I called a well-known state court judge at his home whose name I had often seen in the local paper. He graciously allowed me to come to his house and granted an ex parte TRO and appointed me to serve it on the proper defendant– who was also listed in the white pages. By 9:30 p.m., that night, I served him.

At the habeas hearing a few days later, Ms. Spurling was found to be neither dangerous to herself nor others, and was released. We eventually won a successful challenge in federal court to Iowa’s civil commitment statute because of numerous constitutional deficiencies. To me, Ms. Spurling’s case was just as important as any case I have had since. In terms of luck or being good, I have always found the harder I work, the luckier I seem to be.

I worked extraordinarily hard at keeping abreast of new case law in my practice areas, which enabled me to raise cutting-edge issues. I felt privileged and honored to argue as an officer of the court for any client in any court from small claims to the U.S. Supreme Court. Sure, having my father watch me argue in the Supreme Court was a thrill.  Little did he know, or ever realize, he had witnessed one of the worst arguments ever made there.  Nothing about the arc of my career has been “normal,” so that’s not a concept I ever think about.  I focus only on doing my very best at each task before me – the only professional goal I have ever had.

Q. You took a job as a United States Magistrate Judge in 1991, not long after Mistretta was decided and the nature of federal criminal practice fundamentally changed under a new paradigm. What were your thoughts about the Sentencing Guidelines back then? What impact did it have on your work as a Mag.? Did it influence your bond decisions, knowing that defendants who a few years earlier might have faced only a few years at worst, could now be looking at a lifetime in prison? Were you comfortable in your new role as a Magistrate Judge?

A. I was exceptionally fortunate to have been selected as a U.S. magistrate judge from a very, very strong field of wonderfully talented lawyers and judges. An aside, but an important aside to me, is my reason for leaving my firm. My wife had just given birth to our twins at barely 26 weeks. My son, David, was 2 lbs. 3 oz. and died after 8 hours. My daughter, Sara, was 1 lb. 14 oz., and went down to 1 lb. 4 oz. On her tenth day of life, Sara started very slowing gaining weight. She was in the hospital for many months and had only the most remote chance of survival with a virtual certainty of having both profound mental and physical disabilities. My days and evenings with her in the neonatal ICU made me realize that I had placed way too much importance on my practice, and that it would be a healthy thing to give it up and find more contemplative work.

I wasn’t really qualified to do anything else, so I told my partners that if the current magistrate judge was elevated (there was an Article III opening and it looked like that may be in the works) that I would apply. They laughed and said my client list of the ACLU, the Hare Krishnas, the Unification Church (Moonies), the Christian Nudist Church (“Go naked if the Holy Spirit move you”), two draft dodgers, a slew of inmates, the Socialist Workers Party of America, and the fact that I had recently sued the President, the Pope, and the nine justices of the Iowa Supreme Court in three different cases in federal court, was not exactly the path to a federal judgeship.

Being a federal magistrate was a great job, the front-line of the federal judiciary. The SRA really did not influence my bond decisions. Most bond decisions were easy, only 5-10% were weighty. I was comfortable and very happy in my new role. I liked making decisions and found it much less stressful that being a lawyer. You make a decision and move on — there was not the collective weight of stress that increased with every decision a lawyer makes in a case. I found I was able to let each decision go after working my hardest to make the right call.

Q. You were appointed at a district court judge by President Clinton in 1994, less than 20 years out of law school. Was that the dream, to be a federal judge? Were you ready to assume the responsibility that came with the robe? What made you choose to sit in judgment rather than stand in the well and fight? Was it as much fun as some think to be the big guy making the hard decisions? Did the decisions look as hard from the bench as they do from the well? Harder, maybe?

A. Being a federal district judge, or any judge, was never a dream of mine – except as explained above.  It was never anything I thought about, aspired to be, coveted, or thought would ever happen. Why would one waste time thinking about lightning striking?

While I was only 19 years out of law school, aided by my Midwestern work ethic, I had packed a ton of experience into those years, with cases against excellent DOJ lawyers, in both criminal and civil matters, and many of the nation’s and Iowa’s finest firms and lawyers. Whatever modest success I had as a lawyer was based on my judgment and work ethic. I brought that with me to the bench. Again, you have to be careful what you seek. I wanted a more contemplative professional life and got it. That has its own drawbacks.

I don’t see what I do as hard; great trial lawyers — what they do is both hard and magical, artists with words, they do the heavy lifting. My job is to follow the law and do justice, so the only hard thing about what I do is when following the law does not match my sense of justice. It is then I have the opportunity to fulfill my oath, follow the law as I understand it, and write opinions expressing my disagreement with it. The nice thing about being a district judge is that my opinions bind nobody, including me. But they have, on occasion, had major influences on bending the moral arc of the universe towards justice, as Martin Luther King so eloquently spoke and wrote about.

Q. In your decision in Security National Bank v. Abbott Labs, you decried the opposite extreme to trial by ambush, which you termed “trial by avalanche,” the huge haystack concealing the tiny needle. What about discovery in criminal prosecutions, where both games are routinely played on the defense? Criminal defense lawyers suffer discovery envy when we hear of the splendid options available to civil lawyers. Is Rule 16 discovery inadequate? How can criminal defense lawyers manage trial by avalanche, when bankers boxes of 3500 material are dumped on us the day before trial? Why don’t judges seem to care? And then, there’s the elusive Brady debacle. Can anything be done to make the government provide Brady/Giglio early enough to make it usable?

A. I recently published a law review article suggesting we have the discovery rules backwards in our civil and criminal justice systems in federal court. See, Mark W. Bennett, The Grand Poobah And Gorillas In Our Midst: Enhancing Civil Justice In The Federal Courts—Swapping Discovery Procedures In The Federal Rules Of Civil And Criminal Procedure And Other Reforms Like Trial By Agreement, 15 L. Rev 1293 (2015). Most civil cases involve the hope of a court-ordered transfer of wealth. The defense has money and the plaintiff believes they are entitled to some or all of it. There are exceptions, of course, for equitable relief and to vindicate constitutional and statutory bedrock principles. In criminal cases, the thrust is to incarcerate and deprive offenders of their liberty. So, with some modest tinkering, I would switch the paradigms so that those facing loss of liberty and death get the broader discovery and those in the civil area get a criminal Rule 16 type mandatory reciprocal disclosure with perhaps a few little tweaks.

The interesting observation is that the virtuoso cross-examiners and spell-binding raconteurs come not from the civil side as much as the very best on the criminal side. The criminal defense lawyers and AUSA’s often take on witnesses cold, with no statements or depositions. That forces them to really study and learn the craft — all of the mountains of discovery most civil lawyers engage in teaches them nothing about being a good or great trial lawyer.

In our district, the AUSA’s have changed their practices and now make full early disclosure of all information in their possession, including Brady and Giglio well in advance of trial. But, because there is so much disparity in discovery, let alone charging decisions and sentencing approaches, in the 94 districts, Congress should step in and beef up Brady/Giglio both procedurally and substantively, including looking at broader remedies when there are violations.  I am aware that colleagues have discovered very disconcerting abuses.

Q In an article you wrote for the NACDL’s Champion, entitled Heartstrings or Heartburn: A Federal Judge’s Musings on Defendants’ Right and Rite of Allocation, you wrote that allocutions matter:

I find them immensely important. More often than not, they help shape the sentences I impose — for better or worse. In many cases, I find the allocution more significant in crafting a sentence that is “sufficient but not greater than necessary” than anything the defense lawyers are able to do or argue. I disagree with claims by academics in law review articles that changes in criminal procedure have rendered the historic rite of allocution meaningless. In my courtroom, allocution is always factored into the crucible of intense scrutiny that I give the § 3553(a) factors when imposing a sentence.

What makes an allocution grab you by the heartstrings? What sort of allocution gives you heartburn? What about the defendant who lacks the capacity to express himself well, or the defendant who is too nervous to speak? What about the defendant who maintains his innocence? Is he punished for the failure to express remorse, even though he may, in fact, be innocent? Academics (and others) also argue that most judges have already decided on a sentence before allocution, or argument for that matter, is heard. Is that true? Even if not you, what about other judges?

A. Allocutions are often a very intimate process for a judge to learn from the only place they can about huge blanks in the PSR’s that probation officers aren’t able to access despite their stellar work. I always give an offender a full Miranda warning that they have an absolute right not to say anything, and that I will not hold that against them in any way. I also explain that some allocutions help a defendant, some have no impact, and that sometimes I have increased the sentence based on what an offender says. I also advise that, should I ask a question, they have the same right not to answer, they can consult with their lawyer about answering each question, and that I will not hold it against them in any way if they decline to answer any or all of my questions.

I will keep this answer short, because anyone can read the article you refer to online as well as reading the comprehensive empirical follow up law review, the first and only one of its kind about federal trial judges and allocution that I wrote with my co-author, Professor Ira Robbins at American University Washington School of Law. Mark W. Bennett and Ira. P. Robbins, Last Words: A Survey and Analysis of Federal Judges’ Views on Allocution in Sentencing, 65 L. Rev. 735 (2014). This article answered many of the questions you raise, and from a broad base of federal judges.

I think it unwise for a defendant to allocute if they maintain their innocence. I don’t think any judge holds it against an offender who does not allocute. A few years back, I had a white collar defendant with a few years of law school under his belt who pleaded guilty to 16 counts and went to trial on 3 counts and was found guilty of those. His allocution lasted six hours, over two days, in which he professed his complete innocence. I indicated he was very, very persuasive in convincing me, beyond a reasonable doubt, to give him the statutory maximum — he was close anyway. His allocution convinced me that any feelings of mercy should be saved for another day and another offender.

Q. You’ve been harshly critical of mandatory minimums, asserting that they have forced you to send more than a thousand nonviolent drug defendants to prison. Prosecutors argue that this reflects Congress’ view of the seriousness of drug offenses, and empowers them to gain cooperation. Where is the tipping point between the legislative power to determine a minimum sentence and the judge’s compliance with the Constitution and the parsimony clause, 18 U.S.C. § 3553(a)? Is the safety valve or a 5K1.1 letter enough of an opportunity to get out from under a mandatory minimum? What does a judge do when his sentencing decision does what he believes to be an injustice?

A. No one can seriously argue that Congress lacks the power and authority to enact mandatory minimums and statutory maximums. But, as citizens, we would hope that these critical decisions that affect hundreds of thousands of offenders would be based on sound analytics, testimony of various judges, prosecutors, defense counsel, offenders, corrections officials, criminologists and other social scientists, the DOJ, and stakeholders. Just a brief glimpse of the history of the ADAA of 1986, which created many new mandatory minimums, teaches that there were no such hearings but, rather, a bidding war on both sides of the aisle to ratchet up sentences so that they could out-duel the other side on “being tough on crime” in the 1986 federal elections.

Surely, we can all agree, now, that this is not a principled way to enact punishment and resulted in the United States becoming the leading country in the world in terms of mass incarceration. There is something rotten not in Denmark, but, here, in the greatest country in the world, where we have 5% of the world’s population, but 25% of the world’s incarcerated. That we incarcerate more people than all the dictatorships in the world suggests something has gone terribly wrong.  That so many minorities fill our prisons is shocking and a call to action.  As for the safety valve and substantial assistance motions, they are useful tools for both the prosecution and judge to reduce the harshness of federal sentencing in some cases. But, they are extremely limited tools. Hopefully, significant expansion of the safety valve seems to be something Congress agrees on in the various pending sentencing reform bills.

Judges have an obligation to impose a congressionally mandated mandatory minimum whether they agree with it or not. All judges make decisions that are contrary to their own personal beliefs — that is nothing new to judges. Where I likely differ from the majority of my colleagues is that I do both speak about and write about it in judicial opinions, law review, and other articles. Indeed, when I am forced by mandatory minimums to impose a sentence that I think is unjust I say so on the record. In my view, less than 1 in 10 mandatory minimums I impose are justified. So many of the offenders I sentence are low level, non-violent addict meth users. It only takes 5 grams of meth to trigger a mandatory minimum.

Q. Sentencing is, perhaps, the greatest of legal mysteries. You’ve written frequently about the undue harshness of the Sentencing Guidelines, but what makes for the right sentence? How does a judge know whether 121 months or 124 months is right? What magic says 17 years is a proper sentence, but 16 years, 11 months isn’t? And is it right that a defendant sentenced on different sides of the courthouse hallway can end up with wildly disparate sentences? Is there no virtue in consistency, as provided by the Guidelines?

A. There is almost always, given the § 3553(a) factors, a fairly wide range of what a reasonable sentence is. That is, a sentence that is sufficient but not greater than necessary to comply with the statutory purposes of sentencing. Unless we want computers to sentence offenders, there is naturally a range of reasonableness — not a precise number of months. Once the AUSA’s in our district transitioned from the mandatory to an advisory guidelines regime and the developing case law, the parties are rarely widely apart in terms of sentencing recommendations. They usually frame a range of reasonableness which is often below the guidelines range. In arriving at the actual sentence, judges carefully weigh the § 3553(a) factors, listen and think about the arguments of counsel, and rely on all the information they are allowed to consider and carefully select the sentence they think is appropriate.

It is not a perfect system and obviously different judges have different sentencing philosophies and balance the § 3553(a) factors differently. So long as the ultimate sentence is reasonable — I think this an excellent sentencing system. The harshness of the guidelines could be cured by re-designing them in light of our nearly 30 year experience with them and incorporating more empirical data and views of more stakeholders in light of such experience.

Q. Last summer, you took senior status, which means you can work as hard or not on the bench as you prefer. One aspect of being a senior judge with life tenure seems to be the willingness to take greater risks, to speak out against those aspects of the system you think are wrong, unjust, counter-productive. Has this been your experience? Does it make a difference to know that you aren’t likely to make the short list for Supreme Court when you decide whether to speak out? Looking back, is there a concern that not enough judges are willing to take a chance and do what they think is right? Are younger judges, particularly those who came of age during the mandatory guidelines era, too myopic, maybe too ambitious, to make waves?

A. People who know me know I did not need either senior status or life tenure to speak out against injustice, for better or for worse, that is hard-wired into my DNA — and I started at a very young age in the first grade. Speaking out against injustices that we, as lawyers, perceive is, to me, a calling of the profession. I never, ever, had any desire to move up from being a trial court judge, or to be popular, so I intend to continue to speak out again injustices I perceive –that’s my life’s calling.

My father taught me at a young age to stand up to injustice. I spoke up to support a friend in first grade after the teacher was picking on him because he was having trouble performing a task (he was placed in special education classes the next year). That got me kicked out of school for the day. My father came and got me from school. After the principal told him what happened and we were walking home and I was sobbing, my father said the principal was right for disciplining me, but that I was right for standing up to a perceived injustice. He instilled in me the understanding that you may never get a second chance, so you have a duty to speak out against injustice — especially if it involves another — but there will be consequences. However, the consequence of remaining silent is the worst consequence of all.

I have always strived to be faithful to my father’s advice because, while he always gave me unconditional love and support, he rarely offered advice. I leave it to each of my colleagues to decide if speaking out is for them — because of the great importance of an independent federal judiciary. I fully support each judge making their own decision about the harshness or leniency of the guidelines and mandatory minimums. I have my own views that I have made public, but I have no greater wisdom on this than my colleagues. I do believe every federal district judge I know takes sentencing very seriously and does their absolute best to give a fair sentence. That we may respectfully disagree on what is sufficient but not greater than necessary is the price we pay for judicial independence.

With mandatory guidelines, we simply substituted discretion by AUSA’s for that of judges. As I have pointed out in numerous opinions and law review articles, there was far more disparity in charging decisions, plea bargains, various policies about how to apply or how not to apply certain guideline enhancements, decisions affecting substantial assistance motions and the extent of the departures, and the wicked disparity in application of 21 U.S.C. § 851 enhancements even among districts in the same state — than among my colleagues in sentencing.

Two thoughts on new judges.  First, each will need to find their own sentencing philosophy and strive to be consistent in their own sentencings because, in the end, that is all we can do.  In sentencing and weighing the § 3553(a) factors, we do what Judge Guido Calabresi has written: “We weigh that which cannot be measured.” Secondly, and most importantly, new judges in their training get a very guideline-centric approach about sentencing, especially from the excellent trainers from the Sentencing Commission. The Commission has a great website, chock-full of detailed reports and statistics and incredibly user-friendly. But, nowhere on it or in their reports, training, or public comments do you ever see detailed information about all the decisions of judges who have written opinions expressing policy disagreements with a host of guidelines. Nor, in my view, does a new judge hear the compelling counter arguments that, despite the propaganda, most guidelines and most SOC’s (of which there are a dizzying array of upward adjustments) lack any meaningful empirical basis.

I think if new judges knew that of the 10,000 cases that formed the basis of the original guidelines that the newly formed Commission looked at between 1984-87, half of them received probation — but those were not directly factored into the calculations of base offense levels — that might suggest to new judges that there is considerable mythology about guidelines being empirically-based. In every preliminary ruling, where I raise a potential policy disagreement about a guideline, I have offered the government the opportunity to adduce evidence or brief why the guideline is, in fact, empirically based. Never once have they done so.

Thank you for the opportunity to share my views with your readership.

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